Archive | DOMA

Tomorrow I’ll be discussing the Court’s decision in United States v. Windsor with Professor Lynn Wardle of BYU Law School. We’ll be there at the invitation of the Duquesne University Law School student chapter of the Federalist Society. The event begins at Noon. […]

The effects of federal recognition of same-sex marriages across the full spectrum of federal benefits, including for those domiciled in states that ban the recognition of their marriages for state purposes, are bubbling up on an almost daily basis. According to the Dallas Voice, the University of Texas-San Antonio (UTSA) has denied an in-state tuition rate to the same-sex spouse of an active duty servicemember who is stationed in Texas, which bans same-sex marriages in its state constitution. The military recognizes the marriages of servicemembers to same-sex spouses for all purposes and wherever the servicemember is stationed. Texas doesn’t have to recognize same-sex marriages for state purposes, so ordinarily its public universities would not have to provide any benefits based on such marriages. But in this case, federal law provides that federal aid is available to schools only if they grant spouses of military members the favorable rates. The Higher Education Opportunity Act, 20 U.S.C. 1015d, provides:

In the case of a member of the armed forces who is on active duty for a period of more than 30 days and whose domicile or permanent duty station is in a State that receives assistance under this chapter, such State shall not charge such member (or the spouse or dependent child of such member) tuition for attendance at a public institution of higher education in the State at a rate that is greater than the rate charged for residents of the State.

The president of the American Military Partners Association says that UTSA better get with the program or risk losing federal funds. “Federal law specifically requires that universities grant in-state tuition rates to the spouses of active duty service members,” he told the Voice. “We urge the federal government to immediately withhold any federal funds that UTSA is […]

Why is the Defense of Marriage Act unconstitutional? Here are two propositions that United States v. Windsor might be thought to stand for:

(1) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional intrusion on federalism (a structural claim); or

(2) The federal government’s decision not to recognize state-sanctioned marriages of same-sex couples was an unconstitutional infringement on a substantive right, e.g., the right to marry (a liberty claim).

These are among the many plausible interpretations of Windsor, but some explanations are more plausible than others. After consuming several pages discussing the interests of the states in controlling family law, Justice Kennedy expressly states that the Court is not relying strictly on federalism. Surely a statement in a decision suggesting what it means should have some bearing on what it means. The Chief Justice, in dissent, thinks federalism is nevertheless critical to the result and would help to distinguish the case from one that involved a claimed constitutional right to state recognition of same-sex marriages. He might be right about that. But the Chief Justice’s explanation may also be more a hope about the limited consequences of an alternative Windsor than a reading of the actual Windsor (see Justice Scalia’s dissent).

As for the second proposition, the Court certainly mentions liberty several times. And the context is one in which the plaintiffs claim that “liberty” protects a right to have their marriages fully recognized by government. The Court sets for itself the task of deciding “whether the resulting injury and indignity is a deprivation of the liberty protected by the Fifth Amendment.” Slip op. at 19. It concludes that Congress “cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.” Op. at 25. But my sense is that reliance on […]

The effect of United States v. Windsor continues to ripple through federal law, expanding by leaps and bounds the rights and protections afforded to same-sex spouses. The effect has been magnified by a friendly federal bureaucracy under the Obama administration, which is widely adopting a place-of-celebration rule for recognizing same-sex marriages under federal laws using words like “spouse” and “marriage,” thus extending federal recognition to same-sex spouses even if they live in states that don’t themselves recognize their marriages.

The latest installment in this story is the announcement today by the Labor Department that henceforth it will interpret the Employee Retirment and Income Security Act of 1974 (ERISA), which governs most private pension and health plans, to include same-sex as well as opposite-sex spouses.

[T]he term “spouse” will be read to refer to any individuals who are lawfully married under any state law, including individuals married to a person of the same sex who were legally married in a state that recognizes such marriages, but who are domiciled in a state that does not recognize such marriages. Similarly, the term “marriage” will be read to include a same-sex marriage that is legally recognized as a marriage under any state law.

The Department defended its decision to adopt a place-of-celebration rule rather than a place-of-domicile rule based on its reading of Windsor and policy considerations, like a need for uniformity and certainty in coverage of employees who move from one state to another.

This is the most natural reading of those terms; it is consistent with Windsor, in which the plaintiff was seeking tax benefits under a statute that used the term “spouse”; and a narrower interpretation would not further the purposes of the relevant statutes and regulations. . . .

In the aftermath of United States v. Windsor, the Obama administration is adopting a generous position on the availability of federal benefits to married same-sex couples, as co-blogger Will Baude pointed out yesterday in a post on the IRS ruling regarding their federal tax status. So far, in contrast to their almost open resistance to Lawrence v. Texas, lower federal courts are also reading the decision expansively. Today, a district court in California granted summary judgment to a married lesbian veteran who was denied added disability benefits that would have been available if she had been married to a man, even though the denial did not rest on DOMA. The brief opinion is here.

The Department of Veterans Affairs had taken the position that Windsor struck down only DOMA, not the specific provision of federal law under which veterans’ benefits are determined and that independently defined a “spouse” as “a person of the opposite sex.” 38 U.S.C. Section 101 (c) . The law stood, said the VA, until Congress changed it or a court struck it down as unconstitutional. (The Bi-Partisan Legal Advisory Group withdrew its defense of litigation like this after Windsor.)

The district judge determined that, in light of Windsor, Title 38’s limitation of benefits to opposite-sex spouses was not rationally related to the federal government’s interests in promoting gender equality, expanding veterans’ benefits, ensuring that servicemembers reach their maximum potential, promoting unit readiness and cohesion, or enhancing recruiting and retention.

Quite aside from its significance on the issue of same-sex marriage, one consequence of Windsor could be that federal courts are gradually accepting heightened scrutiny when it comes to discrimination against homosexuals. A second possibility is that, apart from increased skepticism of anti-gay discrimination, Windsor will lead to a further erosion […]

Chris Geidner (my go-to source these days for post-DOMA legal developments) reports that the Social Security Administration has now developed policies for paying benefits to couples in same-sex marriages. Most interestingly, the SSA has bucked the trend in other executive agencies of paying benefits to all couples whose marriage was validly celebrated. Instead, the SSA will pay benefits only to a couple whose home state (“domicile”) recognizes their marriage.

I assume that this stems from 42 U.S.C. § 416(h)(1)(A)(i), a special statute dealing with choice of marital law for social security claims:

An applicant is the wife, husband, widow, or widower of a fully or currently insured individual for purposes of this title if the courts of the State in which such insured individual is domiciled at the time such applicant files an application, or, if such insured individual is dead, the courts of the State in which he was domiciled at the time of death, or, if such insured individual is or was not so domiciled in any State, the courts of the District of Columbia, would find that such applicant and such insured individual were validly married at the time such applicant files such application or, if such insured individual is dead, at the time he died.

Two additional thoughts about this.

1. SSA’s decision may well be required by 416(h)(1)(A)(i), and if so it is hard to criticize the administration. But the decision has the unfortunate effect of ensuring that same-sex couples will be married for some federal purposes and not for others. My view is that one of the important attributes of marriage as a legal matter is the way it functions as a cross-cutting and trans-substantive. (See pp. 1415-1416 of my article.) So this is not a good thing. This should be […]

A commenter to my last DOMA/choice-of-law post asks– why not just have federal law recognize all state-law civil unions? Why insist that a legal union be labeled “marriage” to count federally as a marriage? There are two slightly different versions of this question, which in my view have different answers.

Version one: Under current law, do federal laws referring to “marriage” include unmarried couples in civil unions? My view is “no,” as a simple matter of statutory text. There are a lot of couples in various kinds of close relationships, but for whatever reason (presumably some combination of tradition and simplicity) lawmakers often choose to single out “marriage” when giving special legal status to a relationship. Indeed, for better or worse, that special legal status has become an important part of what marriage is. So when Congress refers to couples who are married, we ought to take it at its word. Civil unions, while functionally very similar to marriage, are formally not marriage. Indeed, that is often the very point of a civil union. If one thinks that the legislature is constitutionally permitted to regulate access to marriage in this way (a big if, these days!), then one ought to respect the choice of forms.

That said, here’s version two of the question: Ought we to amend federal law, so that wherever possible, couples in state-law civil unions have all of the same benefits as couples in state-law marriages? My view is “maybe so!” At the outset I’ll say that I’m strongly in favor of amending federal law to provide some predictable and consistent way of deciding what couples are married for purposes of federal law. Bills providing a federal choice of law rule have been introduced in both the House and Senate and would help avoid exactly the kind […]

Thanks to the ever-alert Chris Geidner, I saw this post-DOMA decision by a federal district court in Pennsylvania, which is a good example of how complicated the post-DOMA choice-of-law problems can be (and how hard it is to get them right).

The case is an interpleader action dealing with ERISA problems (bear with me!) arising out of the death of Ms. Sarah Farley. Ms. Farley worked at a Pennsylvania law firm and married another woman, Ms. Tobits, in Canada. At the time of the marriage until Ms. Farley’s death, the couple were residents of Illinois. The firm’s ERISA plan, however, contains a clause saying that it is governed by Pennsylvania law (to the extent it isn’t preempted by federal law).

Under the rules of ERISA and the terms of the plan, Ms. Tobits gets the proceeds of the plan if she is Ms. Farley’s “surviving spouse.” If she isn’t, Ms. Farley’s parents get it. So the question is what law to look to — Pennsylvania law, Illinois law, Canadian law, something else? — to figure out if Ms. Tobits is a spouse.

The district court concluded that Ms. Tobits was a spouse. For reasons that are not clear, it seems to have decided that what matters is how the marriage would have been recognized in Illinois. (At times it notes that Illinois was “the couple’s place of domicile,” but earlier it asserted flatly that “Post-Windsor, where a state recognizes a party as a ‘Surviving Spouse,’ the federal government must do so with respect to ERISA benefits …” which implies that maybe another state would work too. It’s not clear why it thought Canada wasn’t enough.) It then concluded that Illinois law recognized the marriage, and so the Illinois marriage was incorporated into federal law.

As readers of the VC all surely know, the Supreme Court’s decision last month in Windsor struck down Section 3 of DOMA, which restricts the recognition of marriage for purposes of federal statutes. One of the big unanswered questions after Windsor was what would happen to Section 2 of DOMA, and more generally the question of whether states must start recognizing same-sex marriages that were performed elsewhere.

Chris Geidner reports that today a federal district court in Ohio answered “yes,” issuing a preliminary injunction forcing the state to recognize a Maryland same-sex marriage. The court concluded that the Constitution required the state to recognize the marriage, and invalidated an Ohio ballot measure saying that same-sex marriages should not be recognized:

[A]s the United States Supreme Court found in Windsor, there is no legitimate state purpose served by refusing to recognize same-sex marriages celebrated in states where they are legal. Instead, as in Windsor, and at least on this early record here, the very purpose of the Ohio provisions, enacted in 2004, is to “impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States.”

Obviously, this decision will not be the last word on the issue and may not even be the last word in this case. It also may be foolish to try to analyze these issues as a matter of precedent or logic, rather than as a matter of predicting the general gestalt direction of equal protection law.

That said, two quick thoughts:

— For the most part, the opinion strikes me as a plausible interpretation of Windsor. Windsor did have some discussion of federalism, which wouldn’t necessarily extend to the interstate context. But the opinion also put emphasis on how “the State’s […]

I have a somewhat different perspective than co-blogger Todd Zywicki on the Obama administration’s decision not to defend DOMA in court. In my view, the President’s duty to uphold the Constitution supersedes any obligation he might have to defend a federal statute. Therefore, if he sincerely believes that a federal law is unconstitutional, he should choose not to defend it. I outlined my reasoning in greater detail in this post, written at the time the administration first decided not to defend Section 3 of DOMA. That post addresses both theoretical and practical arguments against the president’s decision. […]

Both of today’s gay marriage cases raised complex issues of whether the parties had “standing” to appear in federal court. In the Windsor case striking down Section 3 of DOMA, the Obama Administration’s refusal to defend DOMA led the Bipartisan Legislative Assistance Group, made up of members of Congress, to undertake the task. In Hollingsworth v. Perry, California Proposition 8 was defended by a group of private citizens, because the state government chose not to support it. There were serious questions about whether both the BLAG and the Prop 8 supporters had a significant enough stake in the case to qualify for standing under Supreme Court precedent. Ultimately, a 6-3 majority of the Court ruled that BLAG did have standing [Clarification – 5 of them ruled only that BLAG could present arguments defending the interests of the federal government, without reaching the issue of whether BLAG had standing in its own right], while a 5-4 majority concluded that the Prop 8 supporters did not.

Until recently, opinion on constitutional standing issues tended to divide along predictable ideological lines. Conservative jurists usually supported narrow notions of standing, seeking to limit the range of parties who could get into federal court, while liberals supported broad ones. But as I previously pointed out here and here, these ideological alignments have begun to break down over the last few years.

Today’s decisions continue that trend. In the DOMA case, the four liberal justices and Justice Kennedy, the most moderate conservative, concluded that the BLAG has standing [but see update below]. But so too did the conservative Justice Alito. Conservative justices Roberts, Thomas, and Scalia dissented. In Hollingsworth, the distribution of votes was even less ideological. The majority opinion written by the conservative Chief Justice Roberts was joined by liberals Ruth Bader […]

It may be a long time before the effects of today’s gay marriage decisions are fully evident. But it seems clear that they represent important progress for same-sex marriage and gay rights more generally. The DOMA case is also a modest success for those who seek to enforce constitutional limits on federal power.

Obviously, the Court’s invalidation of Section 3 of DOMA in the Windsor case gives married gay couples the same rights under federal law as those now enjoyed by participants in opposite-sex marriages. For now, the effects are limited to people married in the 12 states that currently recognize gay marriage, plus California (which now has to recognize gay marriage as a result of the Court’s decision in the Proposition 8 case). But the number of such states is rapidly growing.

Much of the DOMA decision’s reasoning is based on federalism considerations. That aspect of the ruling will not help future plaintiffs seeking to challenge state laws banning gay marriage. But Justice Kennedy’s opinion for the Court also emphasizes that laws based on “animus” against gays and lesbians are unconstitutional:

DOMA seeks to injure the very class [of married gay couples that] New York seeks to protect. By doing so it violates basic due process and equal protection principles applicable to the Federal Government. See U. S. Const., Amdt. 5; Bolling v. Sharpe, 347 U. S. 497 (1954). The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.The Constitution’s guarantee of equality “must at the very least mean that a bare congressional desire to harm a politically unpopular group cannot” justify disparate treatment of that group.

Justice Anthony Kennedy’s majority opinion for the Court in the DOMA case relies partly on federalism considerations, striking down Section 3 of DOMA in part because it goes beyond the usual scope of federal authority. In reaching this conclusion, it cites (among other sources) the amicus brief submitted by several federalism scholars, including co-bloggers Randy Barnett, Dale Carpenter, Jonathan Adler, and myself (pg. 23). As Kennedy points out, the avowed purpose of DOMA was to promote traditional heterosexual marriage, and “influence or interfere with state sovereign choices about who may be married”:

The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute. It was its essence. The House Report announced its conclusion that “it is both appropriate and necessary for Congress to do what it can to defend the institution of traditional heterosexual marriage. . . . H. R. 3396 is appropriately entitled the ‘Defense of Marriage Act.’ The effort to redefine ‘marriage’ to extend to homosexual couples is a truly radical proposal that would fundamentally alter the institution of marriage.” H. R. Rep. No. 104–664, pp. 12–13 (1996). The House concluded that DOMA expresses “both moral disapproval of homosexuality, and a moral conviction that heterosexuality better comports with traditional (especially Judeo-Christian) morality…” The stated purpose of the law was to promote an “interest in protecting the traditional moral teachings reflected in heterosexual-only marriage laws.” Ibid. Were there any doubt of this far-reaching purpose, the title of the Act confirms it: The Defense of Marriage.

The arguments put forward by BLAG [defending DOMA before the Supreme Court] are just as candid about the congressional purpose to influence or

In a 5-4 opinion, authored by Justice Kennedy, the Supreme Court declares Section 3 of DOMA unconstitutional. It’s an Equal Protection holding, informed by federalism principles. Here is how Justice Kennedy’s opinion for the Court concludes:

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

What has been explained to this point should more than suffice to establish that the principal purpose and the necessary effect of this law are to demean those persons who are in a lawful same-sex marriage. This requires the Court to hold, as it now does, that DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution.

The liberty protected by the Fifth Amendment’s Due Process Clause contains within it the prohibition against denying to any person the equal protection of the laws. See Bolling, 347 U. S., at 499–500; Adarand Constructors, Inc. v. Peña, 515 U. S. 200, 217–218 (1995). While the Fifth Amendment itself withdraws from Government the power to degrade or demean in the way this law does, the equal protection guarantee of the Fourteenth Amendment makes that Fifth Amendment right all the more specific and all the better understood and preserved.

The class to which DOMA directs its restrictions and restraints are those persons who are joined in same-sex marriages made lawful by the State. DOMA singles out a class of persons deemed by a State entitled to recognition and protection to enhance their own liberty. It imposes a disability on the class by refusing to acknowledge a status the State finds to be dignified and proper. DOMA

In a recent New York Times column, prominent Supreme Court commentator Linda Greenhouse grossly misrepresents the federalism argument against the Defense of Marriage Act put forward in an amicus brief co-signed by several federalism scholars, including co-bloggers Randy Barnett, Jonathan Adler, Dale Carpenter, and myself. She claims that it is a “Trojan horse” for an effort to block same-sex marriage, and that it is somehow inconsistent with various Supreme Court decisions striking down state laws that violate individual constitutional rights protected by the Fourteenth Amendment:

Beware of conservatives bearing gifts.

Ever since last week’s frustrating Supreme Court argument in the Defense of Marriage Act case, I’ve been wondering whether the attack on DOMA will turn out to be a constitutional Trojan horse. It may bring victory: the demise of a spiteful federal statute, enacted by an opportunistic Congress and signed into law 17 years ago by a cowardly Bill Clinton. But at what price?..

[S]triking down DOMA on federalism grounds is a truly bad idea, and the campaign for marriage equality would be worse off for it. To explain the argument is to reveal its dangers. A ruling that left the states to their own devices when it comes to marriage would take the equal protection guarantee out of the picture…

It would, of course, provide the full benefits of marriage to those living in states that chose to recognize same-sex marriage. But it would snatch away the promise for those living elsewhere, particularly if the decision was based not only on the asserted absence of federal authority but on exaggerated notions of state sovereignty anchored in the Tea Party’s favorite constitutional amendment, the 10th….

Just such a vigorous constitutionally based states’-rights argument was put forward in a brief filed in the case last month by a half-dozen law